Professional Responsibility begins with the lawyer’s regulated status, but it becomes concrete when a lawyer undertakes to represent a client. The lawyer-client relationship is the center of the MPRE. Once representation begins, the lawyer owes duties of competence, diligence, communication, loyalty, confidentiality, safekeeping, candor, fairness, and professional independence.
This chapter focuses on the basic duties that arise in ordinary representation. A lawyer must be competent to handle the matter or become competent through reasonable preparation. A lawyer must act diligently and promptly. A lawyer must communicate enough for the client to make informed decisions. A lawyer must respect the client’s authority over the objectives of representation while controlling many tactical and procedural means. A lawyer must charge reasonable fees, protect client property, and withdraw when required or permitted by the rules.
The MPRE often tests these duties in practical settings. A lawyer misses a deadline. A lawyer fails to return calls. A lawyer accepts a fee from a third party. A lawyer deposits client settlement funds into an operating account. A client demands an illegal tactic. A lawyer wants to withdraw because the client refuses to pay. The question is rarely whether the lawyer is “nice” or “bad.” The question is whether the rules require, permit, or prohibit the lawyer’s conduct.
I Doctrinal Framework
A lawyer-client relationship question should proceed in order.
Establish Relationship
Ask whether a lawyer-client relationship exists. The relationship may arise by express agreement, appointment, or conduct creating a reasonable belief.
Identify the Client
Simple for individuals. Harder for organizations, family members, insured persons, third-party payers, or prospective clients.
Identify the Duty
Is the issue competence, diligence, communication, scope of authority, fees, safekeeping property, file return, or withdrawal?
Determine Required Action
Determine whether the lawyer must act, may act, or must not act. MPRE questions frequently turn on this distinction.
Consider Modifying Rules
Does another rule modify the answer? A fee question may also involve conflict of interest. A withdrawal question may involve court permission. A communication question may involve confidentiality.
II. Formation of the Lawyer-Client Relationship
A lawyer-client relationship usually begins by agreement. A client asks for representation, the lawyer agrees, and the representation begins. The agreement may be written or oral, though written engagement letters are strongly preferred and sometimes required for certain fee arrangements.
But a relationship can also arise from conduct. If a person reasonably believes that the lawyer agreed to provide legal services, the lawyer may owe duties even without a formal contract. This can happen during consultations, informal advice, email exchanges, or emergency assistance.
The lawyer’s subjective intent is not always controlling. If the lawyer gives legal advice in circumstances suggesting representation, the person receiving the advice may reasonably rely on it. That is why lawyers should clarify when they are not undertaking representation.
A lawyer should identify the client at the beginning. In organizational settings, the client is the organization, not necessarily the officers, directors, employees, shareholders, or constituents. In insurance defense, the client may be the insured, even if the insurer pays the fee. In family or business matters, multiple people may appear aligned at first but later develop conflicts.
Exam Tip
When a question begins with an informal conversation, ask whether the lawyer gave legal advice or merely general information. A casual statement about the law may not create representation, but specific advice directed to a person’s legal problem can create duties.
III. Competence
A lawyer must provide competent representation. Competence requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
A lawyer does not need to be the leading expert in a field before accepting a matter. A lawyer may become competent through reasonable study, association with experienced counsel, or preparation, if the matter allows time. In an emergency, a lawyer may provide limited assistance even without ordinary competence if referral or consultation is impracticable and the assistance is limited to what is reasonably necessary.
Competence includes more than knowing legal rules. It includes investigating facts, understanding procedure, meeting deadlines, using appropriate technology, recognizing limits, and preparing adequately. A lawyer who knows doctrine but fails to investigate essential facts may act incompetently.
Competence is contextual. A routine traffic matter requires different preparation than a capital case, complex merger, patent dispute, or class action. The required level of skill depends on the complexity and stakes of the matter.
Common Trap
Do not assume a lawyer violates the competence duty merely by accepting a matter in a new field. The lawyer may accept if the lawyer can become competent through reasonable preparation or association. The violation occurs when the lawyer handles the matter without adequate competence.
IV. Diligence
A lawyer must act with reasonable diligence and promptness. Diligence means pursuing the client’s matter with commitment, attention, and timely action.
Neglect is a common basis for discipline. Missing statutes of limitations, ignoring court orders, failing to file required documents, abandoning a matter, or repeatedly failing to respond to urgent developments can violate the duty of diligence.
Diligence does not require offensive or abusive tactics. A lawyer need not press every possible argument, harass opponents, or pursue frivolous motions. Diligence means lawful and reasonable pursuit of the client’s objectives.
Delay can be a professional responsibility problem even when the lawyer eventually completes the work. A lawyer who repeatedly fails to move a matter forward may harm the client and violate the duty of promptness.
Hypothetical
"A client hires a lawyer to file a personal-injury claim. The lawyer accepts the matter, places the file in a drawer, and takes no action for eighteen months. The limitations period expires."
The lawyer has likely violated the duties of competence and diligence. The problem is not merely poor customer service. The lawyer failed to protect the client’s legal rights and allowed a deadline to pass. The same conduct may also support malpractice liability, but discipline and malpractice are separate consequences.
V. Communication
A lawyer must communicate with the client sufficiently to allow informed decision-making. The lawyer must keep the client reasonably informed about the status of the matter, promptly comply with reasonable requests for information, and explain matters to the extent reasonably necessary for the client to make informed decisions.
Communication is especially important when decisions belong to the client. The lawyer must consult with the client about objectives, settlement decisions, plea decisions, waivers of jury trial, whether to testify in a criminal case, and appeals when those decisions are for the client.
A lawyer may not simply disappear. Failure to return calls, failure to report settlement offers, failure to explain major risks, or failure to tell the client about important developments can violate the communication duty.
Communication must be meaningful. A lawyer does not satisfy the duty by sending confusing technical language the client cannot understand. The lawyer should explain options, risks, and consequences in a way that allows the client to decide.
VI. Scope of Representation & Allocation of Authority
The client controls the objectives of representation. The lawyer generally controls the means, subject to consultation and professional duties.
Client Decisions (Objectives)
- Whether to accept a settlement offer (Civil).
- Whether to plead guilty (Criminal).
- Whether to waive a jury trial (Criminal).
- Whether to testify (Criminal).
- Whether to appeal.
Lawyer Decisions (Means)
- Which witnesses to call.
- How to cross-examine.
- What motions to file.
- How to structure legal arguments.
- Note: Tactical decisions still require consultation if they materially affect the client's interests.
A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent. Limited-scope representation may be useful for discrete tasks, such as reviewing a contract, drafting a pleading, or advising on settlement. The limitation must not make the representation incompetent.
VII. Client Misconduct and Lawyer Limits
A lawyer must not assist a client in conduct the lawyer knows is criminal or fraudulent. The lawyer may discuss legal consequences and may help a client make a good-faith effort to determine the validity, scope, meaning, or application of the law. But the lawyer cannot knowingly help the client commit fraud, destroy evidence, lie to a tribunal, or obstruct justice.
If a client demands illegal or unethical conduct, the lawyer must refuse. Depending on the circumstances, the lawyer may need to withdraw. If the client has already used the lawyer’s services to commit fraud, additional duties may arise, especially if tribunal candor or financial harm rules are implicated.
The lawyer’s role is advisor and advocate, not accomplice.
Exam Tip: When the client says, “Do whatever it takes,” ask what the proposed tactic is. Zealous representation does not permit dishonesty, obstruction, frivolous claims, false evidence, or violation of court rules.
VIII. Fees
A lawyer’s fee must be reasonable. Factors may include the time and labor required, novelty and difficulty of the questions, skill required, customary fee in the locality, amount involved, results obtained, time limitations, nature and length of the relationship, experience and reputation of the lawyer, and whether the fee is fixed or contingent.
A fee agreement should be communicated to the client, preferably in writing, before or within a reasonable time after representation begins, unless the lawyer regularly represents the client on the same basis. Changes in fees should also be communicated.
Contingent fees must usually be in writing and must explain how the fee is determined, including percentages, expenses, and whether expenses are deducted before or after calculating the fee. At the end of a contingent-fee matter, the lawyer should provide a written statement showing the outcome and calculation.
Some contingent fees are prohibited:
- A lawyer generally may not charge a contingent fee in a criminal defense matter.
- A lawyer generally may not charge a contingent fee in certain domestic-relations matters where the fee depends on securing a divorce or the amount of alimony, support, or property settlement.
IX. Fee Disputes
If a fee dispute arises, the lawyer should handle it consistently with professional duties. The lawyer may seek a reasonable fee and use lawful collection methods, but the lawyer must not reveal confidential information unnecessarily or use client property improperly.
A lawyer should not hold a client’s file hostage in a way that materially harms the client, especially when the client needs the file to continue representation. Jurisdictions vary on retaining liens, but MPRE questions generally favor protecting the client’s interests and returning papers and property to which the client is entitled.
X. Third-Party Payment
A lawyer may accept payment from someone other than the client only if three conditions are met:
- The client gives informed consent.
- There is no interference with the lawyer’s independent professional judgment or the lawyer-client relationship.
- Client confidential information remains protected.
This issue arises when parents pay for a child’s defense, an insurer pays for an insured’s lawyer, an employer pays for an employee’s counsel, or a company pays for counsel for officers or directors.
The person paying the fee does not automatically become the client and does not gain the right to control the representation. The lawyer must protect the actual client’s interests and confidences.
Common Trap
Do not assume the person paying the bill controls the case. The client controls the objectives of representation, and the lawyer owes duties to the client, not automatically to the third-party payer.
XI Safekeeping Client Property
A lawyer must safeguard client property. Money belonging to clients or third persons must generally be kept separate from the lawyer’s own property, usually in a client trust account.
A lawyer must not commingle client funds with personal or operating funds. A lawyer must not use client money for the lawyer’s expenses. The lawyer must keep proper records, promptly notify the client or third person when funds are received, promptly deliver funds or property the person is entitled to receive, and provide an accounting when requested.
Client funds include settlement proceeds, advance fees that have not yet been earned if required to be held in trust, escrow funds, and money held for third persons. The precise handling of advance fees may vary by jurisdiction and fee type, but the principle is separation and protection.
Misuse of client funds is one of the most serious professional violations. Even temporary borrowing can result in severe discipline.
XII. Disputed Funds
When funds are disputed, the lawyer must keep the disputed portion separate until the dispute is resolved. The lawyer should promptly distribute any undisputed portion.
For example, if a client receives a settlement and a medical provider claims a valid lien, the lawyer may need to hold the disputed amount in trust while distributing the undisputed balance. The lawyer cannot simply give all funds to the client if doing so would ignore a legitimate third-party claim. Nor may the lawyer keep funds indefinitely without reason.
Commingling Hypothetical
"A lawyer receives a $90,000 settlement check. The lawyer deposits the entire amount into the firm’s operating account, planning to write the client a check later that week after payroll clears."
This is extremely improper. Client funds must be kept separate from lawyer or firm funds. The lawyer may not use the operating account as a temporary holding place. Even if the lawyer intends to pay the client soon, commingling and risking client money violates strict safekeeping duties.
XIII Termination of Representation
Representation may end when the matter is complete, when the client discharges the lawyer, or when the lawyer withdraws. Termination must be handled in a way that protects the client’s interests.
A client generally has the right to discharge a lawyer at any time, with or without cause, subject to payment obligations and court approval if the matter is pending before a tribunal.
A lawyer may not simply abandon a client. When representation ends, the lawyer should give reasonable notice, allow time for employment of other counsel, return papers and property to which the client is entitled, refund unearned fees or expenses, and comply with court rules.
XIV. Mandatory Withdrawal
A lawyer must withdraw when:
- Representation will result in violation of the rules of professional conduct or other law.
- The lawyer’s physical or mental condition materially impairs their ability to represent the client.
- The lawyer is discharged by the client.
If continued representation would require the lawyer to commit misconduct (e.g., presenting false evidence), withdrawal is not optional. Note: If before a tribunal, court permission may still be required.
XV. Permissive Withdrawal
A lawyer may withdraw if it can be done without material adverse effect on the client, OR if:
- The client persists in criminal/fraudulent conduct involving the lawyer's services.
- The client has used the lawyer's services to perpetrate a crime/fraud.
- The client insists on action the lawyer considers repugnant or fundamentally disagrees with.
- The client fails substantially to fulfill an obligation (like paying fees) after reasonable warning.
- The representation imposes an unreasonable financial burden or is rendered unreasonably difficult.
XVI. File and Property Return
Upon termination, the lawyer must take reasonable steps to protect the client’s interests. This usually includes returning papers and property to which the client is entitled and refunding any unearned fee.
The client file may include pleadings, correspondence, discovery, client documents, and other materials needed for continued representation. Jurisdictions vary on whether internal lawyer notes or firm administrative materials must be provided. For MPRE purposes, the safest principle is that the lawyer may not prejudice the client by withholding materials the client needs.
Common Trap
Do not confuse withdrawal with punishment. A lawyer may be required or permitted to withdraw, but must still protect the client’s interests during termination. That includes notice, return of papers and property, refund of unearned fees, and compliance with court orders.
XVII. Application and Analysis
Suppose a lawyer agrees to represent a small business in a lease dispute. The lawyer has never handled commercial leases but believes the matter is manageable. The lawyer researches the law, consults a more experienced lawyer, and prepares carefully.
That is likely competent. A lawyer may accept a new type of matter if the lawyer can become competent through reasonable preparation.
Now suppose the same lawyer accepts the matter, does no research, ignores the client’s emails, misses a deadline to respond to the landlord’s motion, and fails to tell the client about a settlement offer.
Several duties are violated. The lawyer lacked adequate preparation, failed to act diligently, failed to communicate, and failed to convey an important settlement offer. If the lawyer also placed the client’s advance fee directly into the operating account before earning it, safekeeping issues arise.
Now suppose the client instructs the lawyer to “lose” damaging emails requested in discovery.
The lawyer must refuse. If the client persists, withdrawal may be required. The lawyer may not assist obstruction. This single fact pattern shows how ordinary representation combines competence, diligence, communication, client authority, safekeeping, and withdrawal.
XVIII. Bar-Style Analysis Notes
- For competence questions, ask whether the lawyer had or could acquire the necessary knowledge and preparation.
- For diligence questions, look for missed deadlines, neglect, delay, abandonment, or failure to pursue the matter.
- For communication questions, ask whether the lawyer kept the client informed, responded to reasonable requests, explained risks, and conveyed settlement or plea offers.
- For scope questions, distinguish client decisions from lawyer tactics. Settlement, plea, jury waiver, testifying, and appeal decisions often belong to the client.
- For fee questions, ask whether the fee is reasonable, whether the agreement was communicated, whether a contingent fee is allowed and in writing, and whether third-party payment interferes with loyalty or confidentiality.
- For safekeeping questions, identify whose money or property it is, whether it was kept separate, whether notice and accounting were provided, and whether disputed funds were held properly.
- For withdrawal questions, classify the withdrawal as mandatory or permissive, then ask whether the lawyer protected the client’s interests and obtained tribunal permission if required.
Chapter Summary
The lawyer-client relationship creates enforceable professional duties. A lawyer must provide competent representation, act diligently, communicate adequately, respect the client’s authority over objectives, charge reasonable fees, safeguard client property, and withdraw when required or permitted by the rules.
Competence requires legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A lawyer may accept a new type of matter if the lawyer can become competent through reasonable preparation or association.
Diligence requires prompt and committed attention to the client’s matter. Neglect, missed deadlines, abandonment, and unreasonable delay may violate professional duties.
Communication requires keeping the client reasonably informed, responding to reasonable requests, explaining matters sufficiently for informed decisions, and conveying important offers.
The client controls the objectives of representation, including settlement in civil cases and fundamental decisions in criminal cases. The lawyer generally controls tactical means but must consult and may not assist illegal or fraudulent conduct.
Fees must be reasonable. Contingent fees usually require a written agreement and are prohibited in certain matters, including criminal defense and some domestic-relations matters. Third-party payment is allowed only with informed consent, protection of lawyer independence, and confidentiality.
Client property must be safeguarded. Client funds must generally be kept separate in trust, records must be maintained, clients and third persons must be notified of received funds, and disputed funds must be held until resolved.
Withdrawal may be mandatory or permissive. A lawyer must withdraw when continued representation would violate law or rules, when impairment prevents competent representation, or when discharged. A lawyer may withdraw in other circumstances, but must avoid unnecessary harm to the client and comply with tribunal requirements.
The MPRE lesson is practical: once representation begins, the lawyer’s duties become concrete. The lawyer must know who the client is, what the client controls, what the lawyer must protect, and when professional duties override client demands.
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